Citation Nr: 21012216 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-39 578 DATE: March 3, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected degenerative arthritis of the right shoulder is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s service-connected degenerative arthritis of the right (major) shoulder results in functional impairment manifested by painful range of motion more nearly approximating limitation of motion of the right arm to midway between side and shoulder level. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected degenerative arthritis of the right shoulder have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1998 to August 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The appeal was previously before the Board in July 2018, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176, stating that substantial compliance, rather than strict compliance, is required). Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative arthritis of the right shoulder Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably discerned, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire medical history is to be considered when assigning a disability evaluation. See 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to each of these elements. When determining the severity of musculoskeletal disabilities, which are at least partially rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Here, the Veteran contends that the severity of his right shoulder disability warrants an initial disability evaluation in excess of 20 percent. See, e.g., Notice of Disagreement dated May 23, 2014. Specifically, he requests a disability rating of at least 30 percent based upon range of motion limited to midway between side and shoulder level. Id.; see also Appellate Brief dated July 19, 2018. Additionally, the Veteran’s representative has raised the issue of entitlement to a temporary total disability (TTD) rating under 38 C.F.R. § 4.30, following the Veteran’s 2015 right shoulder arthroscopy. See Appellate Brief dated February 5, 2021. A TTD will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. However, as the evidence of record does not provide any indication that the Veteran’s 2015 arthroscopy required hospital convalescence lasting at least 21 days, the Board finds that the record does not support entitlement to such benefit. Turning to the applicable rating criteria, the Veteran’s right (dominant) shoulder disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. Under Diagnostic Code 5010, arthritis due to trauma and substantiated by X-ray findings is rated under Diagnostic Code 5003 for degenerative arthritis, which is in turn rated according to limitation of motion for the joint or joints involved. Where limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion to be combined not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. For the major extremity, Diagnostic Code 5201 provides for, in pertinent part, a 20 percent disability rating for limitation of motion of the arm to shoulder level; a 30 percent rating for limitation of motion of the arm midway between the side and shoulder level; and a maximum 40 percent rating for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Therefore, separate ratings may not be awarded based on limited flexion and limited abduction of the same arm. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to arm, limitation of motion. This code now provides for a 30 percent rating for limitation of motion of the major arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). The record reflects that the Veteran was afforded a VA examination in April 2011. At that time, the Veteran relayed to a clinician that he had been diagnosed with a condition of the right shoulder rotator cuff 12 years beforehand. See VA examination dated April 11, 2011. The Veteran reported, in pertinent part, that the condition manifested in weakness, stiffness, locking, and pain. He further reported that he experienced flare-ups as often as 5 times per day, each one lasting approximately 15 minutes. At worst, the pain level was described as a 10 out of 10. The Veteran conveyed to the clinician that, during said flare-ups, he experienced limitation of motion of the joint causing an occasional inability to move his right arm. The functional impairment of the disorder was noted to be the inability to play games such as football with his sons, restricted mobility, and limited range of motion of the shoulder joint. The April 2011 clinician ordered an MRI of the Veteran’s right shoulder. The imaging revealed, in relevant part, “[n]ormal alignment of the acromioclavicular joint and glenohumeral joints” and “[m]inimal spurring, sclerosis and lucency […] of the inferior margin of the humeral head articular surface.” See examination results dated July 3, 2011. The impression noted was “[p]ossibility of minimal old post-traumatic changes or early osteoarthritic changes, superior inferior aspect of the humeral head.” June 2014 radiological imaging of the Veteran’s right shoulder in internal and external rotations demonstrated advanced glenohumeral degenerative joint disease with multifocal irregularity of the glenoid, suggesting osteochondral defects. See private medical treatment records dated June 20, 2014. Additionally, multiple rounded ossified loose bodies were observed. A physical evaluation of the right shoulder indicated limited internal and external rotation in the shoulder (although not specified in degrees), as well as evidence of crepitus. See private medical treatment records dated June 27, 2014. Another MRI of the shoulder confirmed the impression of glenohumeral osteoarthritis primarily along the posterior glenoid rim, with loose bodies in the subcoracoid recess, as well as a small effusion. See private medical treatment records dated August 2, 2014. Such imaging further revealed mild distal cuff tendinosis. As noted above, the Veteran underwent a right shoulder arthroscopy in 2015. See, e.g., private medical treatment records dated February 16, 2018; see also VA examination dated June 28, 2019. Pursuant to the Board’s July 2018 remand, the Veteran was offered a new VA examination in June 2019. At that time, an examiner documented that the Veteran’s degenerative arthritis of the right shoulder and right shoulder rotator cuff tendinosis did not result in flare-ups but instead caused functional loss of the right shoulder in that the shoulder reportedly “goes limp.” See VA examination dated June 28, 2019. Initial range of motion testing indicated abnormal right shoulder range of motion. Flexion was limited to 120 degrees; abduction, to 100 degrees; external rotation, to 80 degrees; and internal rotation, to 60 degrees. Although the abnormal range of motion does not contribute to functional loss, pain noted on examination reportedly results in functional loss; specifically, testing of flexion, abduction, and internal rotation caused the Veteran pain. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was observed. Furthermore, the examiner noted evidence of pain with weight bearing but no evidence of crepitus at that time. Testing of the left shoulder indicated normal range of motion, with flexion and abduction to 180 degrees and external and internal rotations to 90 degrees each. No left shoulder pain was observed upon evaluation; and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was documented. Additionally, no evidence of pain with weight bearing or evidence of crepitus of the left shoulder was observed. The Veteran was able to perform repetitive-use testing with at least three repetitions for both the right and the left shoulder; and neither joint experienced additional loss of function or limited range of motion after three repetitions. Although the examination was not conducted immediately after repetitive use of the right shoulder over time, the examiner found that the results of the physical assessment were medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatiguability, or incoordination were not noted to significantly limit functional ability of the right shoulder over a period of time. The examiner was not able to estimate the Veteran’s limitation of motion without resorting to speculation, as the medical evidence of record did not provide an adequate basis on which to make such an estimate. No additional factors contributing to the disability were noted for either the Veteran’s right side or left side. Muscle strength testing demonstrated normal strength of the forward flexion and abduction of both the right and the left shoulder, with no reduction in muscle strength observed. No muscle atrophy was documented; and no ankylosis was reported. Notably, a right rotator cuff condition was suspected. The results of the Hawkins’ Impingement Test, the Empty-Can Test, and the External Rotation/Infraspinatus Strength Test were negative. However, the Left-Off Subscapularis Test was positive, indicating weakness when the examiner pushes against the Veteran’s arm after the Veteran internally rotates the arm behind his lower back. The Veteran relayed to the examiner that he has experienced functional impact from the right shoulder disability in that he had lost up to a week of work in the past 12 months due to the condition and that the right shoulder disabilities resulted in pain and difficulty lifting objects. The Veteran reported the occasional use of a brace to assist with his right shoulder arthritis. Finally, concerning Correia criteria, the examiner observed no objective evidence of pain on passive range of motion testing of the right shoulder. However, objective evidence of pain was noted when the joint is used in non-weight bearing. Based on the foregoing, the Board finds that, resolving reasonable doubt in the Veteran’s favor, the medical and lay evidence of record supports the assignment of a disability rating of 30 percent. Although the range of motion results do not, per se, indicate limitation of arm motion to 45 degrees flexion or abduction, as is typically required for an increased rating under Diagnostic Code 5201, the disability picture presented by the record demonstrates further functional limitation caused by additional factors, which collectively more nearly approximate the criteria required of a 30 percent disability rating. Specifically, the Veteran reported frequent and painful flare-ups in his April 2011 VA examination, which limited his right shoulder’s range of motion. Private medical records from June 2014 revealed evidence of crepitus, although crepitus was not observed during the June 2019 examination. Finally, as reported in the June 2019 examination, the Veteran experiences occasional functional loss of the right shoulder, which restricts his range of motion, due to pain. Testing also indicated that the Veteran experiences pain of the right shoulder with weight bearing and non-weight bearing. Accordingly, entitlement to an initial disability rating of 30 percent, but no higher, is warranted by the evidence of record. The Board has considered whether a disability rating greater than 30 percent for the right shoulder is warranted under the other criteria for rating the arm and shoulder but finds that such criteria are not applicable. The Veteran has clearly retained some useful motion of his arm throughout period on appeal; and a rating under Diagnostic Code 5200 pertaining to ankylosis of the shoulder is not supported by the record. The Board also notes that higher ratings are possible under Diagnostic Codes 5202 for impairment of the humerus, but there is no evidence of fibrous union, nonunion, or loss of the humeral head (flail joint). Therefore, Diagnostic Codes 5200, 5202, and 5203 are not for application in this case. In summary, the evidence supports a finding that a 30 percent initial rating is warranted for the Veteran’s service-connected degenerative arthritis, right shoulder. However, the record does not show that the criteria for entitlement to an initial rating in excess of 30 percent have been met. To the extent that the Veteran seeks entitlement to an initial rating higher than those previously assigned and those assigned in this decision, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected right shoulder disability, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.